DECISION

How the Supreme Court Decides Cases

An admixture of legal scholarship and gossip, by law professor Schwartz (Univ. of Tulsa; The Ascent of Pragmatism: The Burger Court in Action, 1989). Schwartz bases his study on internal documents and on interviews with (often anonymous) justices and clerks, as well as on historical materials and published opinions. He shows that the justices, through a lengthy process of conferring and exchanging drafts, make law through a much more collaborative and less individualistic process than is generally assumed. Schwartz voices a deep concern with the ``increasing delegation--if not abdication- -of key elements of the deciding function'' to law clerks, who not only select which cases the court will review, but write most of the opinions that set forth the law of the land. He also worries that the politicization of the nominating process has made it unlikely that ``a nominee with the potential for greatness could be approved.'' The parts of the book most accessible to general readers can be seen as a more restrained version of Bob Woodward's 1979 The Brethren (which Schwartz terms ``incomplete and inacurate''). Reading about the justices' foibles and personality conflicts is all the more entertaining, given the veil of secrecy behind which they normally work. Much of the book will, however, be heavy going for readers unfamiliar with constitutional law. Schwartz relates in convincing but sometimes tedious detail a number of examples of horse-trading and vote-switching by justices. In trying to demonstrate the chief justice's leadership role, he proves only that a great politician, such as Charles Hughes or Earl Warren, will bend more justices to his views than a lesser one like Warren Burger. Those hostile to the Warren Court's liberal activism may be disturbed by this Warren biographer's unreserved approval of it. Thoughtful and illuminating, but probably a challenge for the general reader.